Summary
requiring that a contractor show the claimed expenditures "were necessarily paid for materials and work upon the job" to recover
Summary of this case from Olmstead Constr. v. Otter Creek Invs.Opinion
February 28, 1949.
1. Appeal — notice to court reporter — when may be given.
A notice to the court reporter to transcribe his notes when given within term time but after the judgment in final form has been entered in the case sufficiently complies with Sec. 1640, Code 1942, which requires the notice to be given "in writing within ten days after the adjournment of court" and the filing of a motion for a new trial after the notice has been given does not revoke the notice.
2. Construction contracts — costs plus basis.
A contractor who agrees to do work for another on a cost plus basis must keep accurate accounts of all materials used and labor performed with the names of the material men and laborers and he must use the same skill and ability as is used in contract work for a gross sum; he may not expend upon the work any amount he may see fit regardless of the propriety, necessity, or honesty of the expenditure and then require payment by the other party.
3. Construction contracts — duty and burden of contractor to establish the bona fides of his performance.
When the aggregate costs on the face of the account rendered by a contractor who agrees to do work for another on a cost plus basis is so excessive and unreasonable as to suggest gross negligence or fraud, the contractor must establish the bona fides of his performance of the work and in his action upon the contract, must show that the moneys which he claims to have expended were necessarily paid for materials and work upon the job, and if he fails to do this he is to be allowed only the reasonable cost and his percentage.
4. Trial — voluminous papers offered en masse.
A party will not be allowed to introduce en masse a box of vouchers and invoices without individual identification or separation, and when so offered the refusal of the court to allow it will not be reviewed on appeal.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
Cameron Wills, David C. Welch, Geo. E. Shaw, L.A. Pyle, and Robt. E. Perry, for appellees.
The notice to the stenographer in this case could not be given until there was a final judgment from which an appeal could be taken. Our statutes provide for appeals only from final judgments (Code of 1942, Secs. 1147 and 1945), and the jury and verdict for the defendant was not a final judgment after the motion for a new trial was filed — Laurel Oil Fert. Co. v. McCrain (1937), 178 Miss. 117, 172 So. 503, and cases cited infra. Here, after the judgment had been entered by the court below on March 11th, appellants filed a motion asking the court below to set aside that judgment and to grant appellants a new trial: "An appeal from a judgment in the circuit court is not allowed until that judgment is actually final (Sections 13 and 3361, Code 1930); and since the judgment is under the control of the trial court until the motions mentioned are finally disposed of, it follows that not until that time does the judgment have the quality of finality. ". . . and when seasonably made the trial court must dispose of that motion, and until so done the judgment remains, nonetheless, under the control of the trial court and, as respects the matter of appeal is not final.
"The rule, therefore, which prevails in most jurisdictions, that there is no final judgment, so far as concerns an appeal therefrom, so long as the cause is still under the control of the trial court by reason of the pendency of a motion for a new trial, or any motion of similar effect (3 C.J. p. 465), is correct, and we must decline to modify the opinion and decision in Mayflower Mills v. Breeland, supra, which is in accord with that rule." Moore v. Montgomery Ward Co. (1934), 171 Miss. 420, 156 So. 875.
This court reiterated the same principle in Johnson v. Mississippi Power Co. (1940), 189 Miss. 67, 196 So. 642, holding again that the right to appeal from the circuit court to this court did not arise until the order was entered overruling the motion for a new trial.
The facts of this case bring it squarely within the holding of this court in Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787. There notice was given to the stenographer after a motion for a new trial was filed, but before judgment was entered thereupon, the stenographer being asked to transcribe the notes if and when the motion for a new trial should be overruled. Here is what this court said about that notice to the stenographer ". . . The notice to the stenographer to transcribe his notes of the evidence given in this case was insufficient and constitutes no notice to the stenographer to transcribe his notes; it having been given prior to the court's passing upon and disposing of the motion for a new trial." . . .
"The giving of notice to a stenographer to transcribe his notes of the evidence is jurisdictional, and if not given, the notes cannot be considered.
"To uphold a notice of this kind would be to require the court reporter to keep track of all the court's orders, and this would be manifestly unsound and unfair to the court reporter. . . ."
This case has been cited by this court in eight other cases, the last being in McGee v. State, (1948), 35 So.2d 628, in which it was cited as authority for the proposition that "the giving of the notice required by the cited statute is jurisdictional".
The case for the striking of the transcript here is stronger even than it was in the Mayflower case. Here appellants turned their backs on the notice they had giving the stenographer and nullified that notice by invoking the jurisdiction of the court below in a pleading asking that the judgment theretofore entered against them be set aside and that they be granted a new trial. It will be assumed, of course, that appellants felt that their motion was well taken and that the judgment of the lower court should be set aside and a new trial granted. The filing of this motion was just as effective in destroying the notice theretofore given to the stenographer as if they had taken physical possession of the notice and had torn it up. When the jurisdiction of the court below was invoked to grant all of the relief now sought by this appeal, the appeal and any steps which might have been taken in connection therewith were repudiated and abandoned.
The whole question was dealt with by this court and the authorities reviewed and cited in Redmond v. Hilliard, 190 Miss. 839, 200 So. 130, (1941). In that case this court reviewed the authorities and approved Mayflower Mills v. Breeland, using in part this language: "This notice must be given and within the ten days allowed therefor, without which the transcript of the evidenced filed by the court reporter is of no validity and must be stricken from the record. . . .
"The judgment finally disposing of this case, prior to which no appeal to this court would lie, was the judgment overruling the motion for a new trial rendered at the May, 1940 term of the court below. Mayflower Mills v. Breeland, supra. This notice to the reporter was served on him, not only prior to the adjournment of the term of court, but prior to the entry on the minutes of the judgment overruling the motion for a new trial."
In the instant case the notice to the stenographer was served and filed, not only before the motion for a new trial was ruled on, but before it was filed. Under these authorities the filing of the motion for a new trial, the calling on the court below to grant all of the relief which could be granted by this appeal, reopened the whole case and rendered interlocutory the jury and verdict theretofore entered. After the filing of this motion there was no final judgment until the court below had passed on it. Any steps taken to appeal from the final judgment thus rendered interlocutory were a nullity. The case for striking the transcript here is much stronger than in any of those discussed above. The motion should, we submit, be sustained.
Brief of appellants, contra. R.H. J.H. Thompson and Albert S. Gardner, for appellants.
In numerous decisions, this court has held that when the notice required by Section 1643, Code 1942, has been given, the stenographer's transcript cannot be stricken for any reason unless it be shown that such notes are incorrect in some material particular. McBee and Gossett v. Cahaba Construction Company, 125 Miss. 227, 87 So. 481. Brewer v. Union Planters Bank Trust Company, 126 Miss. 351, 88 So. 770, in which the stenographer made affidavit that the transcript of the evidence was made and delivered to counsel for appellant upon his verbal request, the stenographer denying that he received written notice; although appellant's counsel made affidavit that he had mailed written notice to the stenographer in the proper manner within the time allowed by law. Phillips v. Canon, 129 Miss. 656, 92 So. 157, in which the court held that the stenographer's notes had never become a part of the record in accordance with the terms of the statute pertaining thereto, but that they would be stricken from the record only if incorrect in some material particular. Geiselbreth v. Mississippi Power Light Co., 166 Miss. 749, 147 So. 874, in which the court held that if the record reaches the Supreme Court as correct, the cause shall be considered notwithstanding failure to comply with the statutory directions.
In at least two cases, this court has declined to strike the stenographer's notes when no written notice was given the stenographer: Robertson v. Nicholson, 153 Miss. 545, 120 So. 822; and Cooper v. Martin, 102 So. 851, the latter case being discussed below.
The notice to the stenographer may be given during the term of court at which the judgment is rendered, and it is not necessary to wait until the court adjourns, and give notice to the stenographer within ten days after adjournment. Clark v. Merchants and Manufacturers Bank, 128 Miss. 206, 90 So. 844. Moreover, in Cooper v. Martin, 102 So. 851, the court declined to strike from the record the court stenographer's transcribed notes of the evidence which were transcribed, on an agreement in open court, in advance of a decision by the court, that the notes should be transcribed and submitted to the chancellor in vacation together with briefs for both parties, "the said notes to be used by the chancellor in rendering the decree." While this court was of the opinion that the agreement for the transcription of the notes was tantamount to an agreement between the parties that the transcribed notes should become a part of the record for the purposes of appeal as effectively as if the testimony had been taken in the form of depositions and filed therein, the only purpose for which the notes were transcribed was stated by the chancellor in the words quoted above. In any event, the transcription of the notes in that case was based upon an oral notice or agreement prior to the entry of any judgment or decree in the case. In the case at bar, appellants were diligent in giving the notice within the time limit fixed by statute.
It is submitted that Craig v. Barber Brothers Company et al., 190 Miss. 182, 199 So. 270, has no relation to the motion and does not support the statement in the brief that the notice to the stenographer could not be given until there was a final judgment. The court merely held that the appeal was prematurely taken and should be dismissed.
The case of Laurel Oil Fertilizer Company v. McCrain, 178 Miss. 177, 172 So. 503, and the cases cited therein are not pertinent in that they settle only the question as to the running of the ten day period within which an appeal may be taken from a final judgment of a county court.
The case of Moore v. Montgomery Ward Company, 171 Miss. 120, 156 So. 875, is similarly not pertinent since it affirms the principle that the time for taking an appeal is computed from the time of disposition of seasonable motion for new trial or other proper motion.
The case of Johnson v. Mississippi Power Company, 189 Miss. 67, 196 So. 642, does not support the position taken by appellee, but, on the contrary, establishes the finality of the judgment from which this appeal was taken. The opinion states: "The court has full control over its judgments during the whole of the term at which they are rendered. Nevertheless a judgment `which adjudicates everything material to the determination of the cause, and which, when executed according to its terms, will give all the relief which could be (then) afforded is final.' 33 C.J. p. 1061; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776; Dunagin v. First National Bank, 118 Miss. 809, 80 So. 276; Bank of Courtland v. Long Creek Drainage Dist., 133 Miss. 531, 97 So. 881.
"One necessary qualification of this rule is, that, if a motion for the setting aside of a judgment is filed before the end of the term of the court at which it was rendered, the finality of the judgment is thereby suspended and the limitation on the time for an appeal begins when, but not until, the motion is disposed of. 4 C.J.S., Appeal and Error, Section 106 and 441; 2 Am. Jur. App. Err., Sec. 25; Kingman Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192; Moore v. Montgomery Ward Co., 171 Miss. 420, 156 So. 875; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; O'Bannon v. Greenville, etc., Co., 159 Miss. 68, 132 So. 87."
The language of the court that "the finality of the judgment is thereby suspended" upon the filing of a motion of the setting aside of the judgment before the end of the term at which it was rendered should be carefully noted. The judgment in this case was final under the holding in Johnson v. Mississippi Power Co. at the time the notice to the stenographer was given. The filing of the motion for a new trial on the day following the giving of the notice merely served to suspend the finality of the judgment until the motion was overruled, on the same day upon which it was filed, whereupon the suspension of the finality of the judgment was terminated and the status quo restored.
In 4 Corpus Juris Secundum, "Appeal and Error", Section 106, page 203, it is stated: "The taking of an appeal after the making of the motion for a new trial by a party making such motion has been held to be an abandonment of the motion thereby rendering the original judgment appealable." We do not have such a situation in the case at bar, but the converse, wherein the notice to the stenographer was given prior to the making and the overruling of a motion for a new trial. As pointed out above, the mere giving the notice to the stenographer and "the taking of an appeal" are entirely different things. Nevertheless, if for the purposes of discussion, we adopt appellee's theory and apply the converse of the text quoted above, the giving of the notice to the stenographer would render ineffective the motion for a new trial, and render it a nullity, rather than, as appellee suggests, that the filing of a motion for a new trial rendered the notice a nullity.
Reference is made to the foregoing authorities solely to point out the fallacy of appellee's motion. Appellants submit that, under appellee's theory, there is more force to the argument that the giving of the notice to the stenographer prior to the making of the motion for a new trial waived the motion than to the argument that the subsequent motion waived the prior notice to the stenographer.
The case of Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787, is based on an entirely different state of facts from those in this case, rather than being squarely in point as stated by appellee.
It is obvious that the notice to the stenographer was held to be insufficient not because of the time of the giving of the notice, but because the notice was conditioned upon "if and when". In support of appellants' interpretation of the holding in the Mayflower case, we refer to Redmond v. Hilliard, 190 Miss. 839, 199 So. 83, in which the Mayflower case is discussed. In the Redmond case this court says: "The court held that the notice was ineffective for the reason that it `was given prior to action upon the motion for a new trial and was conditioned upon "if and when" said motion should be afterwards overruled'". It is important to note that, in the Redmond case, this court did not hold the notice to the stenographer in the Mayflower case insufficient because given before the motion for a new trial was disposed of, but held insufficient because it was given prior to action upon the motion for a new trial and was conditioned on "if and when". Note the use of the conjunctive instead of the disjunctive in both the Mayflower and Redmond cases to summarize, the holding is merely that the notice being conditional, constituted no notice at all.
Appellee's motion is bound to fail when it is considered that there are and will continue to be numerous cases in which both parties are aggrieved by a judgment of the court from which both parties desire to appeal. Under such conditions, either a plaintiff or a defendant desiring to appeal can give notice to the stenographer to transcribe his notes. The adversary party, equally aggrieved at the judgment, and equally determined to appeal, can, after the giving by his opponent of the notice to the stenographer, make a motion for a new trial with the view of appealing if his motion be overruled. It cannot be seriously contended that the filing and the overruling of the motion for a new trial in such case would render a nullity the notice theretofore given to the stenographer by the adversary. If this court should so hold, and such a holding is inconceivable, the door would be opened to abuses which this court would not tolerate.
Briefs on the merits:
The briefs of the parties on the merits were devoted to a step by step discussion of a complicated set of facts, so that to attempt abstracts thereof would break the continuity and cogency of the presentation and would render the abstracts or excerpts of little value. There was not much difference of opinion among the brief makers on the applicable law, as it was stated by the court, and since the briefs are too lengthy to be reported in full, this note is appended with the stated reason for not venturing excerpts or abstracts.
Gaylord Shaw, Barney Estes and Burnett Estes, partners composing the co-partnership and doing business as Shaw Estes brought this suit against Bula Cannon Shops, Inc., for the sum of $17,357.32 alleged to be due them by the defendant under their contract for remodeling and equipping the interior of two store buildings — one in Laurel, Mississippi, and the other in Bogalusa, Louisiana.
To this declaration the defendant plead the general issue and gave notice that under the law it was the duty of appellants to exercise reasonable care in performing the services incident to the work and to hold down the cost thereof as much as reasonably possible but the appellants in violation of this duty had conducted the work in a negligent, careless, and unbusinesslike manner, with inadequate supervision, duplicating effort and paying improper prices.
There was a verdict for the defendant in the lower court and the plaintiffs below appeal here.
At the outset of our consideration we are met with the motion of appellee to strike the stenographer's transcript of the evidence in the lower court. Judgment was rendered in the lower court for defendant on March 11, 1948. Four days later, on March 15, 1948, appellants gave the statutory notice to the stenographer to transcribe his notes of the testimony taken on the trial. On the day following, March 16, 1948, appellants filed in the lower court their motion for a new trial and on the same day it was overruled by the Court. It is contended by appellee that the filing of this motion for a new trial revoked the notice to the stenographer and there was no final judgment until after the overruling of the motion for a new trial.
Section 1640, Code of 1942, requires a notice to be given a court reporter to transcribe his notes of evidence "in writing within ten days after the adjournment of court." This notice must be given and within the ten days allowed therefor, without which the transcript of the evidence filed by the court reporter is of no validity and must be stricken from the record. Richmond v. Enoch, 109 Miss. 14, 67 So. 649; Lee Line Steamers v. American Export Co., 109 Miss. 524, 68 So. 771; Dunn v. Green, 124 Miss. 602, 86 So. 852; White et al. v. Board of Supervisors, 121 Miss. 434, 83 So. 611; Armour Co. v. Strahan, 130 Miss. 109, 93 So. 364; Tullos et al. v. Board of Supervisors, 124 Miss. 121, 86 So. 358; Jackson Opera House v. Cox, 188 Miss. 237, 191 So. 293; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; Rees v. Rees, 188 Miss. 256, 193 So. 334, 194 So. 750.
After, but only after, the motion for a new trial was filed, the judgment finally disposing of this case, prior to which no appeal to this Court would lie, was the judgment overruling the motion for a new trial rendered on March 16, 1948. Mayflower Mills v. Breeland, supra; Redmond v. Hilliard, 190 Miss. 839, 199 So. 83, 200 So. 130. (Hn 1) But in the case at bar the notice to the stenographer was given before any motion for a new trial was ever filed and at a time when the judgment was of record against the defendant as a final judgment, from which appeal would lie, and no motion for a new trial was pending. A motion for a new trial is often not filed. There would be much sounder reason justifying a holding that the filing of this notice to the stenographer waived the right to file a motion for a new trial than to hold that the subsequent filing of the motion for a new trial revoked the notice to the stenographer. But there is no necessity for us to pass upon this question as it is not presented here and we do not pass upon it. All we hold here is that at the time the notice to the stenographer was given there was upon the minutes of the court a final judgment against the defendant, from which an appeal would lie. It continued a final judgment until a motion for a new trial might be, if ever, filed. The motion for a new trial suspended it as a final judgment until overruled, but it did not operate to revoke the notice to the stenographer. The notice was given according to law and at a proper time. Immediately there was secured to the appellant the benefit of the stenographer's transcript for use on his appeal. This right was not taken away or revoked by the subsequent filing of a motion for a new trial. The motion to strike the stenographer's transcript is overruled.
This brings us to a consideration of the case upon the merits.
The contract sued upon was a "cost plus ten plus ten" contract. Appellant was to handle the architectural work, the supervision, and supply all labor and materials. Appellee was to pay therefor the cost of same plus ten percent for overhead and ten percent for contractor's fee.
(Hn 2) The rules of law controlling "cost plus" contracts are well established. Upon reason and authority, where a person agrees to do work for another upon a cost plus basis, it is his duty to keep accurate and correct accounts of all material used and labor performed, with the names of the materialmen and laborers, so that the owner may check up the same. He must use the same skill and ability as is used in contract work for a gross sum. (Hn 3) If the aggregate cost upon the face of the account is so excessive and unreasonable as to suggest gross negligence or fraud, the law would impose upon the contractor the duty of establishing the bona fides of his performance of the work. (Hn 2) The contractor does not have the right to expend any amount of money he may see fit upon the work, regardless of the propriety, necessity, or honesty of the expenditure, and then compel repayment by the other party, who has confided in his integrity, ability and industry. Hitt v. Smallwood, 147 Va. 778, 133 S.E. 503; Title Guarantee Trust Co. v. Pam, Sup., 155 N.Y.S. 333, affirmed 192 App. Div. 268, 182 N YS. 824, affirmed 232 N.Y. 441, 134 N.E. 525. (Hn 3) In an action upon his contract for payment, the contractor must show that the moneys which he claims to have expended were necessarily paid for materials and work upon the job and if the contractor fails to do this he should only be allowed the reasonable cost and his percentage. Pathe Laboratories v. Du Pont Film Mfg. Corporation, D.C., 3 F.R.D. 11.
The defendant introduced as witnesses, L.A. Gilley, a Laurel contractor of long and wide experience, J.H. Thrower, of Jackson, whose business is operating a contract estimating service, Webb Overstreet, Jackson, Mississippi, an architect of long and wide experience and from their examinations of the plans and inspections of the work they testified as to the quality of materials used. H.I. Holt, an auditor of Laurel, audited the invoices of materials charged by the contractor as going into the work and the above witnesses showed same to be far in excess of the materials actually used in the jobs. The proof does not show any dishonesty or corruption on the part of the contractor but it shows that through needless extravagrance, waste and negligence or lack of supervision a very large percentage of the materials charged against the work never found their way into the completed structure. During the week of July 26, 1946, there were five painters on the Laurel job. These painters were paid for 92 hours of regular time at $2 per hour and 80 hours overtime at $3 per hour. In the week of August 9 one painter was paid ten hours regular time at $2 and thirteen hours of overtime at $3. There were three painters who had no regular time and had thirty-three hours of overtime at $3. Materials charged against the job were shown to have been sold to others without any credit to the job.
The War Stabilization Board made a claim against the contractor for $6,000 for overpayment of lawful wages and he settled it for $1,700. There is in the record a great deal of testimony offered by defendant establishing that the jobs were not reasonably supervised and that reckless extravagance and waste ran rampant. The overwhelming weight of the evidence establishes these facts. There was a verdict of the jury for the defendant and we think properly so.
It is urged by appellants that the court erred in refusing to grant them a peremptory instruction. We do not think so. We feel the trial judge was manifestly correct in refusing the peremptory.
Appellants assign error in certain instructions granted the defendant. We have examined these and find no error.
(Hn 4) The appellants urge that the lower court erred in refusing them the privilege of introducing en masse a large box of vouchers and invoices without individual consideration of their materiality but the court offered to permit them to pick out any of them or all of them and identify them and show their materiality and then introduce them. Appellants never did offer any individual exhibit, so it was not possible to see whether any of the evidence offered would be relevant to the issues of the case or would be proper rebuttal. This court has steadfastly held that, without such showing, the exclusion of evidence will not be considered on appeal. Martin v. Gill, 182 Miss. 810, 181 So. 849.
We find no error in this record and the judgment of the lower court will be affirmed.
Affirmed.